Over the past three decades, a disturbing trend in mass
crimes has been the single-handed targeting of vulnerable sections of the
population. This includes caste massacres against Dalits or lower castes, and
violence against the country’s minorities. On several occasions, responsible
persons and organisations have termed massacres such as the recent one in
Gujarat, the one in Delhi in 1984 and those in Hashimpura (Meerut) in May
1987, when PAC personnel killed more than 40 Muslim youth, as genocide
killings.

After World War II, an International Convention was brought
into existence worldwide on December 9, 1948 to Prevent and Punish the Crime
of Genocide. In all, it has 19 Articles, of which Article II and III are
particularly important. Article II defines the crime of Genocide as:
"…Genocide means any of the following acts committed with the intent to
destroy, in whole or in part a national ethnical, racial, or religious group,
as such:

Ø

Killing members of the
group;

Ø Causing serious
bodily or mental harm to the members of the group;

Ø Deliberately
inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;

Ø Imposing measures
intended to prevent births within the group;

Ø Forcibly
transferring children of one group to another group.

The Convention has also enumerated the offences that are
punishable and they are

Ø Genocide;

Ø Conspiracy to
commit genocide;

Ø Direct and public
incitement to commit genocide;

Ø Attempt to commit
genocide;

Ø Complicity in
genocide."

Under the Convention, the acts that are punishable are,
genocide, conspiracy to commit genocide, the direct and public incitement to
commit genocide, the attempt to commit genocide and complicity in genocide.
The persons who can be punished for these crimes are any of the persons
committing any of the above acts, even if they are constitutionally
responsible rulers, public officials or private individuals.

Under the Convention, it is a responsibility of member
states to make legislation to give effect to the provisions of the present
legislation; and to provide penalties to persons responsible to be tried by a
competent tribunal of the state, or such international penal tribunals whose
jurisdiction the contracting party may have accepted.

To prove the crime of genocide, there has to be evidence of
the physical destruction of a section, community, racial or ethnic group as
well as the evidence of mental harm. At the crux of it all, the evidence needs
to point to an "intention" to destroy and harm; it is a crime not computed in
numbers of dead or harmed but in the intention and desire to commit it — the
sheer planning, pre–meditation, extent and thoroughness of the killings.

The Gujarat carnage was especially coloured by state
complicity in the violence, premeditation and planning behind the attacks on
the lives, dignity, livelihoods, businesses and properties of a section of the
population — Muslims — and a selective assault on their religious and cultural
places of worship. Muslim women were targeted as objects of their community
and similarly abused with an inhuman level of violence and sexual crimes.
Economic and social boycott of the community was openly encouraged and
continues in many parts of Gujarat, to date. Agricultural land holdings of
Muslims, small and large have been taken over by dominant community and caste
groups. Livelihood for Muslims has been snatched away and there is a clearcut
and ongoing design to economically cripple the community.

The chief Minister of Gujarat, Shri Narendra Modi has been
held by this Tribunal to be directly responsible, along with cabinet
colleagues, and organisations that he leads and patronises — the BJP, RSS, VHP
and BD. For all these reasons together there is no way that the post–Godhra
carnage in Gujarat can escape being called squarely what it was — Crimes
against Humanity and Genocide.

The case for genocide against the VHP and the Bajrang Dal
as well as Shri Narendra Modi and members of his cabinet is being made for the
following reasons:

Ø There have been a
number of statements and pamphlets from the VHP and the BD and its leaders in
the past, which establish that they have been consistently against the Muslim
community, making them the target of verbal and physical attacks and have been
provoking people to economically and physically attack Muslims and,
thereafter, subject them to economic and social boycott.

Ø There is
sufficient evidence to show that the carnage in Gujarat, post–February 27, was
led by theVHP and the Bajrang Dal.

Ø The carnage was at
six levels: Physical destruction of a part of the community; economic
destruction; sexual violence and rape of a large number of Muslim women;
cultural and religious destruction; resistance to rehabilitation; publicly
declared desire to physically and morally destroy the Muslim community of
Gujarat.

Ø The offences that
were committed in the first flush of organised violence continue at a lower
intensity under the same political dispensation even today (See Detailed
Annexures: Status of Refugee Survey, Volume III).

The chief minister is equally liable for prosecution for
genocide for the following reasons:

Ø Refusal to take
any preventive measures and protect the lives and properties of Muslims;

Ø Connivance in and
facilitation of the carnage;

Ø Transfer of good
police officers;

Ø No action against
erring police officers or party functionaries who were named by victims;

Ø Persistent threats
to close down privately run relief camps;

Ø Abusive comments
against the affected and victimised community that qualify as Hate Speech;

Ø Refusal to comply
with the NHRC recommendations;

Ø Total failure in
the provision of relief and rehabilitation;

Ø Absence of
punitive action against provocative press and other organisations;

Ø Influencing
criminal investigation — the omission of the names of VHP/RSS/BJP
functionaries from charge-sheets although their names appear in FIRs.

Ø The case for the
Gujarat carnage being nothing short of genocide is clinched by the fact that
Muslim journalists, Muslim police officers, Muslim bureucrats, Muslim teachers
have had to function only after concealing or changing their identities and
this continues to be a trend even now.

Considering these facts and the distinct tendency and
trends that mass crimes committed against marginalised groups have taken in
past years, it is a grave lapse on the part of the government of India, which
has, to date, not enacted any law in compliance with Article V of the
International Convention on the Prevention and Punishment of the Crime of
Genocide, 1948. India has signed the Genocide Convention in 1948 and ratified
it in 1958. Under the Convention, a state that is signatory is bound to
effectively act upon and legislate upon the intents of the legislation. So
far, India has not enacted any law in compliance with the Convention.

Note on the International Criminal Court

The ICC came into existence from July 1, 2002. India has,
however, refused to ratify the treaty. Under the treaty, any person can be
tried and punished for crimes against humanity, acts of genocide, etc. before
the International Court, irrespective of where the crime is committed. India,
not being a ratifying party, cannot be forced to hand over any person charged
or convicted to this Court.

The genocide in Gujarat could not have been taken up at the ICC since the
Court came into being only on July 1, 2002. However, since it is not the first
time that mass crimes of this kind have been allowed and condoned internally,
it is vital, as a safeguard for the future, that India ratifies the ICC treaty
and subjects itself to international scrutiny, especially in respect of
heinous crimes committed by government functionaries. If the carnage in
Gujarat had taken place post-July 2002, and India had still not ratified the
ICC treaty and acceded to the Court, the issue could have come up through the
UN Security Council reference.